Is Superman Above the Law?

Could Bruce Banner be held liable in court for the violent actions of his alter ego, the Incredible Hulk?

It’s the kind of question that James Daily lives for. Daily, a 28-year-old patent attorney based in Olivette, wrestles with such comic book–inspired quandaries on his blog, Law and the Multiverse. The lawyerly examination of such questions has earned Daily and his collaborator, Ryan Davidson, a cult following and even a book deal within the few months since the site’s launch in November. Everyone, it seems, wants to know how the dust settles after skirmishes between superheroes and supervillains.

So what about Banner’s legal situation? Daily’s take is that Banner is “liable in theory,” but he’d have a strong defense of “temporary insanity.” Banner could argue that he couldn’t control his rage, and he didn’t know what he was doing was wrong. Taking another tack, Daily also notes that regardless of whether the Hulk is charged with a specific crime, the government could argue that he’s so dangerous, he should be committed.

“Of course, good luck getting the Hulk in a straitjacket!” he quips.

Other blog posts have examined Superman’s immigration status—he is originally from the planet Krypton—and whether the look of a superhero’s costume is likely to be covered by copyright.

Daily, whose day job involves research for the Stanford University Hoover Institution Project on Commercializing Innovation, says Batman is in need of a good lawyer (such as Daily) to advise him about patents. Batman’s gadgets are ones that have been developed by Wayne Enterprises (owned by one Bruce Wayne, Batman’s alter ego), and in taking prototype technologies out on the streets, he could invalidate any application for a patent on the invention, Daily says.

He also thinks Gotham City’s government should investigate whether it could be sued for damages caused by Batman’s shenanigans. According to Daily and Davidson, what matters is whether a private individual such as Batman is considered a “state actor”—that’s a technical term to mean someone working in conjunction with the government. So is Batman acting on behalf of Gotham’s police department? At stake is not just the concern about hefty damages the caped crusader might incur. If Batman is a state actor, then any evidence of a villain’s wrong-doing he collects must use the same protocols as the police, if it is to be admissible in court.

“Some of the things we do are a little outlandish,” admits Daily. “Comic books are given to broad strokes and crazy situations. On the other hand, an attorney should be able to analyze any situation.”

Hypothetical situations, after all, are a key part of legal training. It’s common for law professors to push students’ thinking by using a variant of the facts that occur in the real world, even bringing in imaginary concepts at times, says Scott Kieff, who was one of Daily’s professors at Washington University School of Law.

Daily says the fictional worlds he is interested in are “basically grounded in reality.” Gotham City and Metropolis belong to the future, but in both cases are “more or less the U.S. as we know it.” Clearly, they are worlds in which personal-injury lawyers still exist. But, Daily points out, the conceit starts to unravel if one tries to envision the law in imaginary worlds too far removed from our own.

“We don’t do Star Trek, Star Wars, Lord of the Rings,” Daily says. “Those are interesting worlds and are great stories, but the law is completely different. You don’t get the sense there is law in Middle Earth. And while there is law in Star Trek, we don’t know what it is. The really interesting stuff is when you have the real law and made-up facts.”

The origins of Law and The Multiverse can be traced back to a dinner at Café Natasha in late November. Sitting at the table with his wife and several friends, Daily sketched out some fantastic comic-book legal scenarios. A friend laughed, telling Daily he’d have at least one reader if he put such musings online. Daily wrote several posts before he told anyone about the blog.

When he launched the site, Daily thought “a few hundred people would look at it once, and it would pass away into obscurity.” Instead, within a few days of its launch, it received mentions on Slashdot (slashdot.org) and Boing Boing (boingboing.net). A write-up in The New York Times on December 20, however, took things to “an entirely new level.” The site, which typically attracts 10,000 to 15,000 page views per week, had 78,000 views that week.

The first person to comment online was Davidson, an attorney who works for an insurance defense firm in Fort Wayne, Ind. He immediately saw the idea’s potential and volunteered his services. Daily and Davidson have never met in person, but they now divide the work. They each write two new blog posts per week and take turns responding to readers’ comments. Jointly, they spend about 10 to 15 hours per week on the project, Daily estimates.

A book deal’s in the works. Penguin Group subsidiary Gotham Books, which has already produced a book in this vein called The Physics of Superheroes, has slated the duo’s book for release in summer 2012.

“Every step of the way has been a big surprise,” Daily says.

The main reason the blog works is that “comic books provide a lot of compelling stories,” says Daily. These provide a far more engaging way of explaining legal principles than most law textbooks.

The site doesn’t reproduce the comics’ illustrations—due to legal reasons, of course. (There’s also a disclaimer: “On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back…”) Instead, the blog relies on synopses of the episodes in question. Mainstream American comics are so embedded in pop culture that the imaginary universes’ key features don’t require much explanation, says Daily. “When you say Superman, everyone knows that he has a secret identity and he is an alien and he is in love with Lois Lane but can’t tell her who he is.”

For the most part, Daily and Davidson do their legal analyses in the worlds conjured up by DC and Marvel. Though their comics are sometimes derided for an excess of biff! bam! kapow! action sequences, the storylines often raise provocative societal questions. “The best comic books are ones that use the settings or the powers as an excuse to talk about social issues,” Daily says. For example, some comic books have used the idea of being a mutant “as a stand-in for homosexuality” or race, he says.

In 2006 and 2007, for instance, Marvel superheroes were portrayed as being in a civil war. The catalyst? After a Las Vegas rampage by the Hulk, the government passed the Superhuman Registration Act, requiring anyone with superpowers to either work for the government or abandon their powers. The story arc was widely interpreted as a response to the “You are either with us or against us” rhetoric in the months following 9/11. Marvel’s civil-war series tag line: “Whose Side Are You On?”

Even without allegory and coded language, comics can raise issues that have “real-world applicability,” says Daily. A recent Law and the Multiverse blog post investigated the rights of intelligent animals and robots with artificial intelligence. Such concerns might belong in the realm of science fiction for now, but it’s not far-fetched to imagine courts having to rule on such issues in the future.

Then there’s the issue of identity. Would a masked crusader take off his mask if summoned into court? It’s a vexing question, Daily says, but there is some relevant case law. Daily says he would start by looking at instances in which the justice system has tackled activities of the white-sheet-wearing Ku Klux Klan. “Generally, what you wear is seen as a First Amendment–protected expression,” Daily says. And any legal wrangling would likely bring into play the Fifth Amendment, which covers citizens’ rights to refuse to testify against themselves in a criminal case.

Superheroes may stay anonymous to increase their mystique, Daily says, but there also may be a more practical reason: It protects them from getting sued.

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